[ccje2004/docs/CCJE(2004)10e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of Slovenia
A. ACCESS TO JUSTICE
1. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
Measures to inform the public on the functioning of the judicial system have been taken by both legislature and the court system.
The legislature passed the Free Information Act, which gives every person the possibility to demand information of public nature from the courts. Moreover, the courts had to establish a web site, where the functioning of the judicial system is explained. The relevant information is accessible also in written form, collected in the catalogue of information of public nature.
Since year 2002, the Supreme Court employs a person, professional, responsible for public relations. The District Court of Ljubljana, which is the largest first instance court in the Republic of Slovenia, has also a professional responsible for public relations. Professionally trained persons in communication with public and media contribute especially to the understandability of the course of concrete cases.
Informing public in both described ways might reduce the amount of cases brought before the courts, but it is not measurable.
2. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
In civil matters the employment of lawyer is never obligatory, except in cases brought to the Supreme Court. In cases before the county court, the representative does not need to be an attorney. These non-restrictive regulations reduce the costs.
Furthermore the payment of the tax for the action is reimbursed if the parties reach a settlement. The parties who answered a questionnaire after participating in court-annexed mediation all agreed that reimbursement of taxes reduces the costs.
However, the court taxes and the payment of the attorney are of predictable amount, since they are regulated in an act, respectively tariff. There is no simplifying or standardizing legal document to commence or continue the litigation.
3. Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
An effective »legal aid« system is provided with the Free Legal Aid Act, passed in year 2001.
(a) eligibility requirements;
The eligibility requirements refer mostly to the financial situation of the person and his/her family. In order to fulfill the requirements, the average income of the family should not exceed the minimum salary in the Republic of Slovenia (the minimum salary is prescribed by a decree of the government and is related to the costs of living, at the moment it amounts up to approximately 470 EUR). An assessment of the whole property of the family is also made. The fundamental resources for living are excluded from this assessment (e.g. a flat the family lives in). The grant of legal aid can be refused if the matter is unreasonable and injudicious.
(b) identification of authorities entitled to grant the aid;
The presidents (chief judges) of district courts of general and special jurisdiction (e.g. labor courts) grant free legal aid.
(c) budgetary arrangement:
Free legal aid is financed by the budget of the Supreme Court.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins;
b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if her or she loses he or she has to pay to the winning party;
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
Other measures have not been taken yet. A conditional fee agreement and legal cost insurances of all kinds are possible only if the attorney and the party reach such an agreement.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Have measures been taken to relieve judges from non‑judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
In some courts, but not as a system, judges have been relieved from non-judicial tasks in many ways by legal assistants. In some courts (large first instance courts and appeal courts) judges have legal assistants, which are entitled to make simple decisions in the preparatory phase of procedure, before the hearing starts (e.g. to order a supplementation the complaint, to decide on proposal of costs exemption, protection of evidence, about determining judicial dates, hearings, about appointment of an expert, bail of procedure costs, temporary representative, handing out of judicial writings).
Some tasks, that were judicial in the past, took over the notary public: consenting divorces settlements, proving a will, verification of agreements.
In the future, the judges should be relieved from the following tasks in order to reduce excessive workloads: non-contested legacy matters should take over the notary public, the register of companies will be lead by administrative agencies and some decisions about the register of companies and land register will be made by specialized court staff.
Moreover, a thorough reform shall be initiated, regarding the role of legal assistants, who according to their education level could assume more responsible tasks.
The proceeding in criminal cases and especially the proceedings in execution cases need to be modified and simplified.
2. Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
No, there are no other bodies than judicial to solve disputes enforceably, even not in the small claims. The notary public can provide an enforceable agreement if the agreement satisfies certain formal conditions.
3. Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
There is a regular review of court workload, performed by the president of the court. If an excessive workload is observed or predicted and a danger of backlogs exists, the president is obliged to arrange a program of solving them. In this program measures concerning the quantitative work of judges and court staff can be increased. The court with excessive workloads can obtain additional financial resources and demand additional employment of judges or court staff. Furthermore, if both presidents of courts and judges agree, judges from other courts can be transferred to the court with excessive workload (on the decision of the High Judicial Council). In this way a non-balanced distribution of workload can be suppressed or at least diminished.
The review and the distribution of the workload are in the hands of the presidents of courts and therefore a matter of judicial management.
There is no central body in charge of distribution of workload among all courts. The Slovenian Association of Judges is drafting a proposal to change the Law on Courts to allow distributing cases between courts of fairly different workloads.
4. What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
The role of chief judges in the management of judicial infrastructure, information and technology equipment is not deciding. The greatest impact of chief judges is perceived in the human resources field, concerning the court staff.
There is no regular/specialized training in management techniques for chief judges.
The Ministry of Justice and especially the Supreme Court (its department: the Center for the Computerization) have a strong influence on judicial infrastructure, information and technology equipment by assuring the necessary means (objects, technology instruments). The Center for the Computerization of the Supreme Court carries an exclusive authority about hardware and software of the courts information/computerization equipment.
It is important to note that the Ministry of Justice is in charge of building new objects, whereas the court can decide independently on questions of renting objects.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
1. Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
The Judicial Council is the body, which (among other tasks) has control over the system of assessing quality of judicial activity (for every judge and every court).
The essential indicators are the numbers of solved cases, structure of the solved cases, number of cases, where appeal is lodged, number of confirmed, annulled or changed judgments at the appeal level, and data of absence which have influence on the effectiveness of judicial work.
2. Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
(i) institutional subjects (centralized and/or decentralized) in charge of data collection, data analysis, as well as receiving follow‑up;
(ii) judicial activities that form the object of data collection and analysis
Presidents of the courts, from inscription offices of the court, are providing Judicial Council and Ministry of Justice with data. The Judicial Council and Ministry of Justice are analyzing the data separately.
(iii) relevance of statistical data in professional evaluation of individual judges;
The obtained statistical data is relevant for the professional evaluation of judge’s work (evaluation of judicial service), which has also a direct impact on the promotion/career of the judge (promotion in salary, promotion to a higher judicial post).
(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
It is important to note that the evaluation of performance through the statistical data (quantity of work) is only one of the criteria, although important, among others which compose the professional performance of judges. Some other criteria are: knowledge, manner of expression and justification of the reputation of judge's service.
3. Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
There are no general monitoring procedures to measure the duration of proceedings. Ministry of Justice is analyzing the duration of proceedings through the data provided by the presidents of the courts (analysis is published annually in Judicial Statistics, prepared by the Ministry of Justice).
Some courts use the quotient of the workload (number of solved cases, divided by number of workload cases) and the quotient of unsolved cases (the number of unsolved cases, divided by the number of solved cases).
A better allocation of resources is planned next year because financial indicators to improve the effective performance of courts will be introduced. These indicators will be the quotient of workload, the average time of solving a case, the quotient of diminishing the number of unsolved cases, quotient of productivity of work and the quotient of satisfaction of parties and employees.
4. In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role, played by the judiciary in the same actions?
No, these actions are not the tasks of agencies other than judiciary.
The Judicial Council, Ministry of Justice and partly also the Supreme Court now collect the statistic data on the efficiency of the judiciary and each of them is analyzing the data. There is a project in discussion to establish one body for collecting and analyzing all the data.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
1. Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialized schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favor of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
Since 2001 the District Court in Ljubljana, which started with the ADR in Slovenia, has been offering parties the following court annexed programs of ADR:
– Mediation in classical civil cases (since May 2001),
– Early Neutral Evaluation (Since September 2001),
– Mediation in family-law cases (since May 2002),
– Mediation in commercial disputes (since April 2003)
All the programs were pilot programs at first. At the moment, the classical and family mediation are already regular programs of the court, and the commercial mediation program is still in the pilot phase.
The same programs are now starting also at other first instance courts.
2. Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
There are no legal provisions ensuring state supervision over ADR agencies or over the training of mediators.
3. Is legal aid applicable to all or some ADR procedures?
The law on free legal aid enables parties to try to resolve dispute with a help of mediation and parties can be reimbursed for the expenses.
4. Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?
There are no special legal provisions concerning the confidentiality of mediation process. To assure confidentiality principle in mediation procedure, an internal regulation in court - annexed ADR programs is used. Before the beginning of first mediation session parties, lawyers and mediator sign the confidentiality agreement.
According to the internal provisions all communications in connection with the mediation procedure are confidential. Only the court mediator has access to all written and oral statements and presented facts. No information relating to the court mediation procedure is accessible neither to other interested natural or legal persons nor to the general public. If the mediation procedure is not successful, the court guarantees that all information related to the mediation procedure will not be disclosed to any party, including the judge hearing the case according to litigation rules. The case will never be heard and decided by the judge who mediated in the resolution of the dispute. The presiding judge will not be informed of the Court mediator's views or opinions regarding a specific case.
5. May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
The parties can always settle their dispute within the court procedure – the settlement agreement is signed before the judge.
The provision of paragraph I of Article 11 of the Civil Procedure Act (Official Gazette of the Republic of Slovenia, no. 26/99 of 15 April, 1999; hereinafter: CPA), stipulates that it is the duty of the Court to conduct a procedure without any unnecessary delays and at minimum cost while preventing any abuse of rights of the parties to the dispute. Another legal basis is the provision of Article 271 of CPA, by which the presiding judge is granted the right to accept a settlement of action on record at any time during the course of preparations for the main hearing, as well as the provision of paragraph III of Article 306 of CPA, which requires that the court informs the parties, during the course of a litigation procedure, on the option of settlement of action, and help them to reach such an agreement. Another legal basis for the court mediation procedure is also the provision of paragraph II of Article 122 of CPA, which stipulates that less relevant statements or notices need not to be included in a case record.
The same provisions are also the main legal basis for the conduction of a procedure of court - annexed mediation.
b) in‑court ADR
1. What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in‑court mediation.
Judges refer cases to mediation. In the programs of the District Court in Ljubljana (and other first instance courts, where the mediation project is going on) the mediation is completely voluntary. Courts offer mediation to the parties, while they are waiting for the trial to begin. Only when both or all parties express their consent for mediation, the mediation procedure begins.
Judges can serve as mediators, but they perform mediations free of charge, in addition to their regular work.
2. If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
Judge does not appoint the mediators. In each case the mediator is selected and appointed from the list of mediators at random and he/she is completely impartial.
At the moment about 50 mediators participate in the mediation procedures at the District Court in Ljubljana. From that number, 26 mediators are supreme court judges, court of appeal judges and district court judges, 1 is the Deputy Ombudsman – they all carry out mediations free of charge in addition to their regular work. In addition to those, 3 are retired judges and 20 are lawyers/advocates participate in mediation procedures on contract basis. Hourly fee (for one hour of mediation session) is around 20 EUR; honorarium for successfully finished mediation is around 100 EUR.
Family mediation procedures are conducted in co-mediation and co-mediators are trained experts. At the moment in addition to judges and advocates four co-mediators participate in family mediations.
All mediators have attended a specialized training in the field of ADR and use of special communication and negotiation techniques, and have been included on the list of mediators at the District Court in Ljubljana.
In case parties doubt about mediator's impartiality, they can require another mediator on the same grounds as provided for the exclusion of a judge in litigation. The Chairman of the Court shall decide the exclusion of a court mediator.
3. What legal relevance does an in‑court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
If the parties participating in a mediation procedure reach a mutually agreeable solution to the dispute, the court mediator shall compile a draft settlement agreement. After the parties have approved the wording of the draft settlement agreement, the agreement shall be compiled in the form of a court record and submitted for signing to the judge (in accordance with civil procedure law).
c) out‑of‑court ADR
1. What kind of judicial control is possible on out‑of‑court ADR agreements?
At the moment there is no judicial control on out of court ADR agreements.
d) ADR in administrative law disputes:
At the moment there is no ADR in administrative law disputes.
1. Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
e) criminal law and ADR
1. Please describe the role and extent of ADR proceedings vis‑à‑vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
By the law (Law on criminal proceeding, art. 161 a) the public prosecutor is competent to decide, in pre-trail proceeding, whether he will ask for a mediation in criminal cases.
E. CASE MANAGEMENT
a) in general
1. Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
There is no central register and the data of the average duration of a case differ from court to court to a great extent.
The statistical analysis of Ministry of Justice provides data as to the average anticipated duration of all proceedings of first instance: 8,6 months; as to appellate proceedings and Supreme Court proceedings: 7,2 months. The analysis is made by the following method: the number of unsolved cases is divided with the quotient of productivity of judges and multiplied with the number of judges.
2. Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time‑limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
Generally speaking, the judge is the “dominus litis” of the procedure. Nevertheless, each phase of the procedure is determined with provisions of law, which are obligatory. Therefore judge cannot choose between written and oral procedures, the trial staying mainly oral. The law prescribes the exceptions, which under circumstances of non-disputable questions of facts allow a written procedure in commercial matters and small claims.
A summary judgment is also allowed in small claims disputes and in order of payments and small claims of commercial matters; in the later two the judge has to make a regular judgment if the party starts the appeal procedure. The judge has no control over the determination of the calendar and carrying out of evidence. Anyhow, the judge decides what kind of evidence will be performed and when. Certain provisions of proceeding laws sanction delaying tactics and other abusive behaviour of parties. Generally, it is treated as an abuse of procedural rights what leads to the non- consideration of the party's action.
3. Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
Yes, in civil proceeding. A single judge adjudicates most cases of the first instance
(county and district courts).
In a panel of three professional judges cases of intellectual property are adjudicated.
b) in civil disputes
1. Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
In general, the Recommendation No. R (84) 5 was implemented. There was a large reform of the civil procedure in year 1999, which pursued the goal of accelerating the procedure in many ways: by the obligatory filing of defense within 30 days since receiving the complaint, by fixing the term of stating facts and proposing evidence, by the abolishment of the preparatory hearing, by stressing the importance of conciliation and by simplification of provisions of handing the judicial writings.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003.
The civil procedures are simplified and accelerated in the small claim disputes, order of payments, commercial matters and disputes concerning interference with property. In small claim disputes the protocol is written in an abridged way. The parties cannot file more than one writ of summon and are forced to cooperate in the proceeding, if they want to avoid negative fictions, respectively rulings.
The appeal procedure is concentrated on points of law and shortened with regard to time limits. The same holds for other types of proceedings, which are accelerated mostly through shortened time limits, possible abbreviation of judgment, trial and appeal procedure.
On the whole, early settlement of disputes is ensured by the latest amendment of the Civil Procedure Code. It stresses the role of judges and encourages them to promote the possibility of settlement during the whole procedure, especially before the trial starts. A hearing before the trial is intended to discuss a probable settlement. On this hearing, the judge can suggest a settlement he thinks would be the most appropriate to solve the dispute. During the trial, the judge is also entitled to discuss openly the factual and legal aspects of the dispute between the parties and thus informs them simultaneously which questions of facts seem to be proved and what would the possible judgment on this stage of the trial be.
The parties have to suggest the evidence and point out the relevant facts not later than on the first hearing of the trial, unless they were not able to suggest them before without their guilt.
The special characteristic of certain first court's service is mediation. Mediation is integrated within the court and stuffed and financed by the court. Nevertheless, it depends on the consent of the parties and due to lack of legal basis is not an obligatory phase of the civil procedure.
3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
The hearing is not compulsory in small claims and commercial matters if the points of facts are not disputable.
The hearing of only one party is prescribed in “freezing orders” where the proceeding is urgent and temporary, lasting until the judgment is passed.
(iii) exclusively written or oral proceedings, as the case may be;
The proceedings are mainly written in commercial matters. In small claims disputes only one writ of summon is allowed.
(iv) prohibition or restriction of certain exceptions and defences;
No, except for reconciliation defense which has to be put forward before the first instance court.
(v) more flexible rules of evidence;
There are no strict rules of evidence; each fact can be proved by any proof (except agreement on local jurisdiction).
(vi) no adjournments or only brief adjournments;
No; but in the court practice there is a high tendency to brief adjournments.
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
A court expert can be appointed only if a party requests it and under condition of paying the preliminary costs.
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
The judge has an active role regarding the evidence, since he/she decides which of the suggested evidence will be presented.
(ix) the rendering on the part of the judge of a mere "oral" judgement.
A mere oral judgment is not allowed.
4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure);
(ii) disputes concerning recovery of certified uncontested debts;
(iii) small claims (please specify monetary limit);
Yes. Small claims in regular matters shall not exceed 200.000 SIT (app. 840 EUR) and 500.000 SIT ( app. 2100 EUR) in commercial matters.
(iv) employer‑employee relations;
(v) landlord and tenant relations;
(vi) questions of family relations (divorce, custody of children, maintenance);
(vii) disputes involving consumers;
(viii) disputes relating to road accidents;
(ix) manifestly ill‑founded claims.
4.2 a summary judgment has or does not have the force of "res judicata";
Yes, a summary judgment has the force of “res judicata”.
4.3 a summary judgment is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
Yes, a summary judgment determines rights and obligations of parties even if the procedure on merits is not initiated.
5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
Injunction relief is available if a document, fulfilling certain formal requirements, is enclosed to the complaint (deed, bill of exchange, cheque, invoice).
6. Please describe the relevance of time‑limits and interlocutory judgments to assure a reasonable duration of ordinary proceedings.
The judge can execute the control over the procedure by determining the duration of time- limits of judicial nature: the limit to supplement the writings, which are not comprehensible or entire, the limit to fulfill other procedural preconditions concerning the party. The court itself is also bound to time limits, regarding the time to pass the judgment. In this way, the time limits are of high relevance for assuring the reasonable duration of the proceeding.
If an interlocutory judgment is passed, the regular proceeding is urgent.
7. What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
Protective measures that are available in the system range from the interlocutory judgments, pledges, mortgages to preceding orders. The interlocutory judgments aim to protect the enforcement of the judgment. Interlocutory judgment can be released even if only one party has been heart.
8. Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
9. In what circumstances is a first degree judgment provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
There are no such circumstances.
10. Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
The Recommendation No. R (95) 5 is only partially implemented. Some of the following rules pursue the goal of improving the functioning of the appeal system.
All issues of the litigation are defined at the level of the first instance. Before the second instance court it is not allowed to state new facts or new evidence unless there was no possibility to state them before the first instance court. Nevertheless, any decision of the first court is the subject of control of the second instance court. The Civil Procedure Code founded an exception in commercial matters on small claims and orders of payment, where it is necessary to announce the filing of appeal.
In certain categories of procedures, there is a limitation concerning the scope of appeal. In small claim dispute the appeal shall not be based on the points of facts. There is no system that admits appeal only upon court leave. Certainly this system would be desirable in all small claims disputes and procedures not concerning the public importance (interference in property).
A time limit for the exercise of the right of appeal is fixed and relatively short ( eight or fifteen days).
If the party does not define the grounds of appeal, the second instance court examines only certain points of law.
The second instance court cannot dismiss a case in a simplified manner if the appeal seems to be unreasonable or manifestly ill founded. The second instance court always works in a panel of three judges. In principle, there is no oral proceeding before the second instance court.
When the party has a representative, it has to be an attorney or a lawyer who passed the state bar exam. A defense objection of reconciliation is prohibited before the second court instance.
11. Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
(ii) transparency of information concerning assets of debtors;
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
The Ministry of Justice has just concluded an analysis on execution, respectively enforceability issues in the legal system. The results of the analysis show deficiency regarding the above questions. Lack of legal provisions should be compensated with a possible reform of law.
c) in criminal matters
1. Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
On the whole, both recommendations have been partly implemented through numerous reforms of the Criminal Procedure Code.
The principle of discretionary prosecution was introduced according to the historical tradition and the Constitution of Republic of Slovenia.
There is a distinction between administrative and criminal offences. The most frequent mass offences in road traffic, tax and custom law, which are minor, are considered as administrative offences. The pecuniary sanctions are determined in a fixed sum. In minor administrative offences pecuniary sanctions can be collected on the spot.
For minor offences, where the facts of the case are established, the recent reform of the Criminal Procedure Code (2003) introduced the penal order procedure. This procedure is written, without the hearing stage. The sanctions of the penal order are restricted to pecuniary sanctions, respectively to probation. The prison sentence is excluded. In case of accused’s consent, the penal order has all the legal consequences as the judgment, delivered in the ordinary way. In case of the accused’s opposition to the penal order, for which no reasons need to be given, the ordinary procedure starts, where the prohibition of “reformatio in peius” is not applied.
The judicial investigation is not compulsory. However, in grave criminal offences (crimes) the investigating judge has to agree with the direct hearing to start. In minor offences, the state prosecutor can file a direct accusation if there is enough evidence and information of the criminal offence and the person who committed it. In all cases where the judge considers that the preliminary investigation would not be useful, the case is brought directly before the trial court. Where the investigation was carried out, the court hearing can be partly restricted, regarding the hearing of witnesses.
The case can be heart and decided in the absence of the accused, provided that he has been duly informed of the date of the hearing, that he has his lawyer on the hearing (in grave offences), if he was interrogated before and if the judge decides that his presence is not necessary.
The decision of the trial court shall be taken within strict time limit if the defendant has been detained; courts of first and second instance have to proceed urgently.
The trial court is composed of single judge professional in minor offences; in other offences the trial court is composed of a panel of 3 persons (a judge l and two lay assessors). In grave offences (crimes) the trial is heard by a panel of five persons (two judges and 3 lay assessors). The panel of judges reaches the decision by a simple majority.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003 (although these materials mainly concern civil justice).
The procedures that may be called accelerated are the procedure in minor offences, admonition procedure and the penal order procedure. The characteristic of minor offences procedure is the absence of the whole investigation phase; the judge only in exceptional cases can perform some investigating actions. All time limits are shortened. The trial should stay concentrated on one day.
Also for other simplified procedures the time limits are shortened and the grounds of appeal procedures are restricted.
In the penal order procedure, there is no trial.
3. Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
The discretionary decision to discontinue proceedings is possible. The competent authority in exercising this power is the state prosecutor; the discretionary power can be used only in minor criminal offences. Public prosecutor is guided by seriousness and nature of the offence, circumstances of the offence, the personality of the offender, offender's pre-convictions for criminal offences of the same kind or other criminal offences as well as the degree of criminal responsibility the criminal offence was committed. These are all reasons, founded in law. The discontinuation of the proceeding is conditional; since it depends on the success of a conciliation proceeding between the offender and the victim, lead by a trained person. However, the conciliation proceeding starts only if both the offender and the victim agree to it. If the conciliation proceeding succeeded (mostly in certain rules of conduct), the waiving of proceeding becomes final.
The state prosecutor can also adjourn the prosecution in minor offences, under condition of consent of the victim, if the offender is willing to comply with certain conduct, such as: reparation of damage, payment of money to charitable organizations, respectively to victim's non-governmental organizations, performance of work in public interest. If the offender fulfills the obligations, the discontinuation of proceeding is final.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
No. Mass offences of road traffic, tax and customs law are considered as administrative offences ( trespass), if they are minor.
(iii) out‑of‑court settlements are possible;
Out-of- court settlement is possible under conditions of answer to (i).
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
The new procedure for penal order was introduced in the law in 2003; there is no statistic data available yet.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
No, nor a »guilty plea« procedure neither an equivalent procedure has been employed.
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
No, the proceedings can be declared void in restricted points even if the failure to comply with procedural requirements has not caused real damage to the interests of defence and prosecution.
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
Yes, the decision of the court can be notified by mail, but most important summons have to be handed out to person.
Penal order procedure was introduced recently, that's why the percentage of them was not measured yet.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).
4. Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
Investigating judge is competent for the investigation and decision on the pre-trial detention. At the trial the judge is “dominus litis” of the trial, but the penal (judge plus lay judges) decides on quilt and sanctions also (by the majority votes). There is no jury in the criminal proceeding, neither “plea guilty.”